Research On Custom In Source Of Law

Custom is a kind of social rule which had formed spontaneously in the past long history with coerciveness and acceptance characters and always be acknowledged and practiced. It has some kind of social coercive power and universally recognized position along with the legislation to regulate the relationship among the people and chase the interest sharing under the same circumstances. The custom has different functions compare with the positive law and it has its own space in the law field. There are no general provisions to describe the custom as the source of law in China though the international custom and transaction custom have occurred in our current law system, such as the General Provisions of the Civil Law and the Contract Law, etc. To confirm the position of the custom habits as a source of law is the precondition of many questions and foundation of the means as well as ways to use it.This article will describe it according to the train of thought like this:The reasons that we focus on the custom in the source of the law will be analyzed in the foreword article. To study the custom as the source of law with great theory and practice significance.The first part will differentiate the connotation of the custom and analyze the diversity of the source of law as well as sort and study the research results of the custom as a source of the law.The second part has described the historical development of custom as a source of law in China using literature analysis method, historical method. It tries to summarize the development of the custom from the historical development by studying the custom in history.The third part analyzes the practical necessity and condition of custom as a source of the law from many points of view, such as historical analysis, provisions, jurisprudence, constitution law, sociology and psychology, and then it analyzes the reasons and conditions of the custom as the source of law in a static way. Only the good custom could become the source of law under some specific conditions, it should in compliance with the rules rationalities and meet the public order. If only the custom pass the procedures of scientific analysis, identification and judgment, it could become the source of law. Once the rationality of the custom as a source of the law has determined, it occurs to us to coordinate the custom with our sources of the law.The forth part mainly study the coordination of the custom with other sources of law, on the one hand it analyzes the coordination principles between the custom and other sources of law, on the other hand it studies the practice technical between the custom and other sources of law.The value of the custom not only limited to the legislative sources, but also it affects as the judicial applications. The fifth part mainly tries to regulate the customs through analyzing the procedures of custom investigation and collection. To determine the position of the custom as the source of law is the precondition among many questions, it's also a foundation of the means to use it. Only when its position as a source of law has determined, can it be easily introduced into practice. It should be legal to introduce the custom into judicial practice, it's reasonable only if it performs as the source of law.